Today’s decision from a three-judge panel of the DC Circuit Court about Obamacare is getting a lot of attention.
1. What did the decision do? Two of the three judges ruled that people cannot get subsidized health insurance unless they bought it through a state-run exchange. This would mean no subsidies for people in the states that used the federal exchange. However, nothing changes right now. People who could get subsidies yesterday are still getting them today.
2. How many Mainers would be affected if the decision stands? According to the last federal report, a bit more than 44,000 Maine people received insurance through the exchange. 89% of them received subsidies. Thus, if this decision went into effect, about 39,000 people would lose their subsidies, making insurance less affordable or unaffordable. According to one estimate, premiums for Mainers who had subsidized insurance would go up by 70-75%.
3. Is this the last word on the case? Hardly. The Obama administration will ask the full DC Circuit Court to hear the case. Note that the two judges on the three judge panel which ruled against subsidies for the federal exchange are Republicans. However, in the full DC Circuit Court, Republican appointees are in the minority.
4. And what about other Appeals Courts? Today another Appeals Court, the 4th Circuit, based in Virginia, had a three judge panel unanimously rule the opposite of what the DC Circuit’s three judge panel ruled. They found that subsidies are available whether or not one bought insurance on the state or federal exchange.
5. Might the Supreme Court hear this case sometime? Sure, although it’s more likely if there are contradictory decisions. If the full DC Circuit Court overrules the three judge panel’s 2-1 decision, there won’t be a contradiction. At the same time, it still could be heard in that circumstance. Only four Supreme Court Justices are needed to decide to hear a case.
6. What does this mean for people who were affected by Medicaid expansion having been blocked in Maine? During the debate about expansion, Republican opponents said that a portion of people who would have been covered by expanded MaineCare should instead get subsidized insurance through the exchange. If the Circuit Court panel’s decision is upheld, that will not be possible.
7. Did Congress really want to limit subsidies to state exchanges? In my opinion and the opinion of the writers of the legislation and the dissenting judge on the DC Circuit Court and the three judge panel of the Appeals Court (4th Circuit) — no. As the dissent for the DC Circuit panel points out, there are no indications in any congressional debate nor any materials from the time that they meant to do so. The claim that subsidies only go to insurance chosen on a state exchange is based on a single clause of the bill, while the context of the clause suggests otherwise. And no state, in discussing whether to have a state exchange, ever considered that not doing so would mean that no subsidies would be available to its citizens.
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